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Chhotelal Keshoram, Partnership Firm Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 433 of 1961
Judge
Reported inAIR1973MP146; 1973MPLJ404
ActsLimitation Act, 1908 - Sections 12(2)
AppellantChhotelal Keshoram, Partnership Firm
RespondentThe Union of India (Uoi) and ors.
Appellant AdvocateR.S. Dabir, ;S.Q. Hasan, ;O.P. Namdeo and ;Kanta Rao, Advs.
Respondent AdvocateR.K. Pandey, Adv.
Cases ReferredJagat Dhish v. Jawahar Lal
Excerpt:
- .....in preparing the decree, i.e., the time between the signing of the judgment and the signing of the decree is time requisite for obtaining the certified copies of the judgment and the decree within the meaning of sub-section (2) of section 12 of the limitation act (indian limitation act, 1908), in cases where the delay in the preparation of the decree was for no fault of the applicant?'2. this reference arose on the following facts. the appellant-firm sued the respondent for damage to a consignment and a decree for rs. 8333/6/- was claimed. after a full trial, the court of the civil judge, class i, rajnandgaon, decreed the plaintiff's claim to the extent of rs. 4103.20 with corresponding costs. that judgment was delivered on 16-11-1960. a formal decree was drawn up on 30-11-1960. the.....
Judgment:

Tare, C.J.

1. In second appeal No. 433 of 1961 (Chhote Lal Keshoram v. Union of India) the learned Single Judge referred the following question for the opinion of a larger Bench and the then Chief Justice was pleased to constitute a Full Bench for considering the same:

'Whether, when an application for certified copies of a judgment and a decree is made after the signing of the judgment but before the decree is prepared and signed, the whale of the time taken by the Court in preparing the decree, i.e., the time between the signing of the judgment and the signing of the decree is time requisite for obtaining the certified copies of the judgment and the decree within the meaning of Sub-section (2) of Section 12 of the Limitation Act (Indian Limitation Act, 1908), in cases where the delay in the preparation of the decree was for no fault of the applicant?'

2. This reference arose on the following facts. The appellant-firm sued the respondent for damage to a consignment and a decree for Rs. 8333/6/- was claimed. After a full trial, the Court of the Civil Judge, Class I, Rajnandgaon, decreed the plaintiff's claim to the extent of Rs. 4103.20 with corresponding costs. That judgment was delivered on 16-11-1960. A formal decree was drawn up on 30-11-1960. The Union of India, which was the appellant before the first appellate Court viz., the Additional District Judge, Rajnandgaon, had already applied for a certified copy of the judgment and decree on 29-11-1960. The certified copy was delivered on 10-12-1960 and the Union of India filed an appeal on 9-1-1961. An objection was taken that the period from 17-11-1960 to 30-11-1960 could not be computed in favour of the Union of India as it was not time requisite for obtaining a certified copy vide Section 12 (2) of the Indian Limitation Act, 1908. That objection was overruled by the learned appellate Judge mainly relying on Bhagwant v. Liquidator, Co-operative Society, Sarphapur, ILR (1955) Ngp 791 (FB). The learned appellate Judge, therefore, allowed the defendant's appeal and the plaintiff filed a second appeal in this Court which came up for hearing before the learned Single Judge who has made this reference.

3. It is true that in Umda v. Rupchand, AIR 1927 Ngp 1 (FB) the learned Judges of the Judicial Commissioner's Court constituting the Full Bench held that under Section 12 (2) of the Indian Limitation Act, 1908, a party who had applied for a certified copy before the signing of the decree was entitled to compute the period between the delivery of the judgment and the signing of the decree as time requisite under Section 12 (2) of the Act. However, the Full Bench said that if no such application be made by a party before the signing of the decree, the party will not be entitled to such period under the said provision. However, a Full Bench of the Bombay High Court in Jayashankar Mulshankar Mehta v. Shah Mayabhai Lalbhai, ILR (1952) Bom 514 - (AIR 1952 Bom 122) (FB) accepted the first proposition laid down in AIR 1927 Ngp 1 (FB) (supra), but did not accept the second proposition and a contrary opinion was expressed. This Full Bench case of the Bombay High Court was relied upon by a Full Bench of the Nagpur High Court in ILR (1955) Ngp 791 (FB) (supra), which was a case of the second type, namely, where no application had been made by the party concerned for a certified copy before the decree was signed. An application was made after a revision was filed in the High Court which was dismissed with the remark that the remedy of the appellants was to apply to the Court to draw up the decree. In spite of that fact, the learned Judges constituting the Full Bench held that the party concerned was entitled to exclude the period between the delivery of judgment and the drawing up of the decree under Section 12 (2) of the Indian Limitation Act, 1908. As such, there was certainly a conflict of views between the Full Bench case of the Nagpur Judicial Commissioner's Court on the one hand and the Full Bench cases of the Bombay High Court and the Nagpur High Court as regards the second type of cases, on the other hand.

4. The matter came up for consideration before their Lordships of the Supreme Court in Jagat Dhish v. Jawahar Lal, AIR 1961 SC 832. In that case their Lordships approved of the view as expressed in the Full Bench case of the Nagpur Judicial Commissioner's Court viz., AIR 1927 Ngp 1 (FB) (supra) and in the Full Bench case of the Bombay High Court viz., ILR (1952)Bom 514 = (AIR 1952 Bom 122) (FB) (supra). Thus, their Lordships of the Supreme Court agreed with the proposition laid down in the said two cases that if an application for a certified copy is made before the signing of the decree, the party concerned would be entitled to the period between the delivery of the judgment and the signing of the decree as time requisite under Section 12 (2) of the Indian Limitation Act, 1908. Their Lordships specifically drew a distinction between the two types of cases viz., the first type where an application for a certified copy is made before the signing of the decree and the other type where no application is made before the signing of the decree, but the same is made after the decree is signed. As regards the second type of cases, their Lordships of the Supreme Court merely noted that there was a conflict of views between different High Courts. However, in that particular case their Lordships were not required to resolve that conflict of view between the Full Bench case of the Nagpur Judicial Commissioner's Court on the one hand and the Full Bench cases of the Bombay and Nagpur High Courts cited above, on the other hand. The case of ILR (1955) Ngp 791 (FB) (supra) was not at all brought to the notice of then) Lordships of the Supreme Court. Thus, their Lordships merely noted the conflict of views and observed that different High Courts had tried to do justice by interpreting the provision in accordance with the particular facts of each case. As such, the conflict of views with regard to the second type of cases remained unresolved by their Lordships of the Supreme Court, although the Full Bench cases of the Bombay High Court and the Nagpur High Court had decided that question.

5. In the present case, we may observe that it is not necessary to resolve that conflict for two reasons. The first reason is that the present case belongs to the first category where an application for a certified copy was actually made on 29-11-1960 and the decree was actually drawn up on 30-11-1960. As such, the present case being of the first type as mentioned by their Lordships of the Supreme Court in AIR 1961 SC 832 (supra), the Union of India was certainly entitled to compute the period between the signing of the judgment and the signing of the decree as time requisite under Section 12 (2) of the Indian Limitation Act, 1908. Secondly, in view of the amendment of the law by enactment of the Limitation Act of 1963 and particularly the Explanation to Section 12 of the Act, we find that any opinion expressed by us on the question would only be of an academic interest.

The explanation reads thus:

'In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'

For these two reasons, we do not think ft necessary to express any opinion on the question whether a party would be entitled to the period between the delivery of judgment and the signing of the decree where an application for a certified copy is made after the decree is signed. Suffice it to say that the present case being one where an application for a certified copy was made before the decree was signed, the Union of India was certainly entitled to compute that period as time requisite under Section 12 (2) of the Indian Limitation Act, 1908, and as such, the view expressed by the learned appellate Judge viz., the Additional District Judge, was correct.

6. We, therefore, answer the question referred to us in the affirmative as indicated above. Let the case be placed before a Single Bench now for decision in accordance with our opinion. As the matter was debatable, we direct that there shall be no order as to costs of this reference before the Full Bench.


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